CLD-006 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-3224
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JAY L. THOMAS,
Appellant
v.
NOVA SOUTHEASTERN UNIVERSITY;
JOHN DOES 1-10; XYZ CORP 1-10
(hereafter collectively the defendants)
____________________________________
Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Civil No. 2-11-cv-02089)
District Judge: Honorable William J. Martini
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Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 6, 2011
Before: RENDELL, HARDIMAN and ROTH, Circuit Judges
(Opinion filed: March 13, 2012)
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OPINION OF THE COURT
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PER CURIAM
Appellant Jay Thomas, proceeding pro se, appeals an order of the United States
District Court for the District of New Jersey dismissing his complaint against Nova
1
Southeastern University. For the reasons that follow, we will affirm the judgment of the
District Court.
Thomas alleged in his complaint that he was an online student at Nova
Southeastern University for approximately ten days. Thomas stated that his enrollment
agreement with Nova Southeastern provided for a tuition cost of $6,215.00, which was
payable in the form of a student loan. Thomas further averred that, under the enrollment
agreement, students shall receive a prorated refund of half the cost of tuition in the event
of a withdrawal before the end of the sixth week of classes. Thomas stated that Nova
Southeastern did not refund half the cost of his tuition, returned his loan proceeds to the
lender, and charged him tuition in the amount of $7,768.75. Thomas brought claims
against Nova Southeastern for breach of contract and violation of the Higher Education
Act, 20 U.S.C. § 1070 et seq.
Nova Southeastern filed a motion to dismiss the complaint. Thomas then sought
leave to file an amended complaint, in which he omitted his claim of a Higher Education
Act violation and added a claim of breach of fiduciary duty. 1 The District Court agreed
with Nova Southeastern that Thomas failed to state a claim for breach of fiduciary duty
and dismissed his remaining claim for lack of subject matter jurisdiction because Thomas
1
Nova Southeastern initially filed a motion to dismiss the original complaint. In
response, Thomas sought leave to file an amended complaint but failed to file his
proposed complaint in District Court. Nova Southeastern, who had been served a copy of
the proposed complaint, moved to dismiss it out of an abundance of caution. Thomas
then sought leave to file another amended complaint, which he filed. The District Court
considered the original complaint and the proposed amended complaint filed with the
court.
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did not satisfy the amount in controversy requirement for diversity jurisdiction. This
appeal followed.
The federal district courts have original diversity jurisdiction of all civil actions
where the matter in controversy exceeds the sum of $75,000 and is between citizens of
different states. 28 U.S.C. § 1332(a)(1). “The sum claimed by the plaintiff controls if the
claim is apparently made in good faith. It must appear to a legal certainty that the claim
is really for less than the jurisdictional amount to justify dismissal.” Dardovitch v.
Haltzman, 190 F.3d 125, 135 (3d Cir. 1999) (quoting St. Paul Mercury Indem. Co. v. Red
Cab Co., 303 U.S. 283, 288-89 (1938)). Whether a claim is for less than the
jurisdictional amount depends on what damages a plaintiff could recover under state law.
See Packard v. Provident Nat’l Bank, 994 F.2d 1039, 1046 (3d Cir. 1993) (considering
whether punitive damages were recoverable under state law to determine if amount in
controversy requirement was met).
The District Court explained that Thomas claimed that he was owed half his
tuition cost plus collection costs for a total of $4,551.25 in compensatory damages for
breach of contract. Although he also claimed punitive damages, such damages are not
recoverable under New Jersey law for breach of contract. Lightning Lube, Inc. v. Witco
Corp., 4 F.3d 1153, 1194 (3d Cir. 1993). 2 Thus, Thomas’ breach of contract claim does
not satisfy the amount in controversy requirement for diversity jurisdiction.
2
The parties do not dispute the application of New Jersey law to Thomas’ claims.
3
Thomas also brought a claim for breach of fiduciary duty, for which punitive
damages may be recovered under state law, but the District Court granted Nova
Southeastern’s motion to dismiss this claim pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief may be granted. The District Court
explained that Thomas and Nova Southeastern do not have the requisite relationship of
trust and confidence that gives rise to a fiduciary duty under New Jersey law. See F.G. v.
MacDonell, 696 A.2d 697, 703-04 (N.J. 1997). Thomas has not cited, nor have we
found, any authority supporting the conclusion that Nova Southeastern owed Thomas a
fiduciary duty under the circumstances of this case. Thus, this claim was properly
dismissed.
The District Court correctly noted there is no basis for federal question
jurisdiction. Thomas had initially claimed a violation of the Higher Education Act, but,
as Thomas recognizes, he no longer seeks to pursue this claim. The District Court also
acted within its discretion in declining to exercise any supplemental jurisdiction that may
have been available. See 28 U.S.C. § 1367(c)(3).
Accordingly, because this appeal does not raise a substantial question, we will
affirm the order of the District Court. 3
3
Thomas’ motion to withdraw his appeal in order to file an amended complaint in District
Court is denied. Our decision does not preclude Thomas from seeking relief from the
judgment pursuant to Federal Rule of Civil Procedure 60(b) in order to amend his
complaint.
4